The U.S. population today is highly mobile. When a divorce or child custody case is filed after one spouse or parent relocates to a different state without the other spouse/parent, complicated jurisdictional questions can sometimes arise.
For example, after one spouse relocates out of state, where must a divorce case be filed? When the mother of a child born out-of-wedlock moves to a different state, where should a paternity or child custody case be filed? Do the same rules apply to child support issues? What are the rights of a spouse or parent who relocates from another state to Arizona?
Unfortunately, there is not a “one-size-fits-all” rule when it comes to interstate jurisdiction issues. Different rules apply to interstate child custody jurisdiction, child support jurisdiction, paternity jurisdiction, and divorce case jurisdiction. In fact, there are even different rules governing different aspects of a single case!
In divorce cases, for example, one set of rules applies to the dissolution of the marriage itself, while another set of jurisdictional rules applies to the financial aspects of the case. Similarly, in child custody cases, one set of rules governs interstate child custody jurisdiction, while another set of rules governs interstate child support jurisdiction. These rules are highly complicated and specialized, and it is best to consult with an experienced family law attorney before filing in one state or the other.
Interstate Divorce Jurisdiction. Under A.R.S. Section 25-312.1., in order for an Arizona judge to dissolve a marriage, the judge must find that the petitioner or the respondent resided in Arizona for at least ninety days before the petition for dissolution of marriage was filed. Because of that statute, some divorce filers and even some attorneys believe that a person separated from his spouse can move to Arizona, wait ninety days, and that the Arizona Court then has jurisdiction to decide all issues in the case. This is incorrect.
After moving to Arizona and waiting ninety days to file, a person can have her marriage dissolved in Arizona, but the Arizona Court does NOT have jurisdiction to divide assets and debts or to decide any other financial issue unless the out-of-state spouse consents to jurisdiction in Arizona. See Nickerson v. Nickerson, 25 Ariz. App. 251, 542 P.2d 1131 (1975) (Arizona only has jurisdiction to decide financial matters attendant to divorce if Arizona is the last state of matrimonial domicile).
Interstate Child Custody Jurisdiction. Interstate child custody jurisdiction is governed by the Uniform Child Custody Jurisdiction and Enforcement Act. A.R.S. Sec. 25-1001 et. seq. While there are certain limited exceptions, usually the state in which the child has resided for the most recent six months will have jurisdiction to make an initial child custody determination. A.R.S. Sec. 25-1002 and 25-1031.
The rules governing interstate jurisdiction for custody modification cases are more complicated, but in general, the state which issued the initial custody decision retains jurisdiction to modify until that state decides to relinquish jurisdiction to another state which the issuing state court believes is the proper jurisdiction. A.R.S. Sec. 25-1032-1037.
Interstate Child Support Jurisdiction. Interstate child support jurisdiction is governed by the Uniform Interstate Family Support Act. A.R.S. Sec. 25-1201 et. seq. While these rules again are fairly complicated and some exceptions apply, a court in one state generally cannot order an out-of-state parent to pay child support unless the out-of-state parent has previously resided in the state issuing the child support order or has some other significant connection with that state. It is NOT sufficient alone that the child and the parent seeking support reside in that state (see example below).
Paternity Jurisdiction. The state with jurisdiction to establish paternity of a child born out-of-wedlock will generally be the state in which the child was conceived and/or the state in which the putative father resides at the time the paternity action is brought. The state which has jurisdiction to decide child custody may NOT be the state with jurisdiction to decide paternity, so two separate cases may be required to decide all the issues.
For example, assume a child is conceived and born out of wedlock in California. A year after the child is born, but before any court orders are entered, mother moves to Arizona. Mother and child reside in Arizona for two years. Father remains in California. When the child is three years old, mother decides to pursue child support from the father. Can mother file for paternity in Arizona? No. Mother must file the paternity action in California.
Can mother file for child support in Arizona? No. Unless certain limited exceptions apply, mother must file for child support in California.
In this same example, if father wishes to pursue court-ordered child custody and parenting time, can father file for those orders in California? No. Because mother and child have resided in Arizona for over six months, Arizona will have jurisdiction to make the initial child custody decision.
Again, interstate jurisdictional rules are highly complex and specialized. These rules are often even misunderstood by many lawyers. When interstate issues are involved, a spouse/parent should consult with an experienced and knowledgeable family law attorney before initiating any court action.
Copyright © 2013 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.
You can also check out my video on Interstate Jurisdiction below.
